Carlin v. Ritter

Bryan, J., dissented. A motion was made by the appellant on the 31st of March, 1888, for a re-argument of the above cases,and reasons were filed in support of the motion. The Court overruled the motion, and delivered the following opinion through Judge Miller : The motion for a re-argument in these cases is overruled. There is, however, a slight error in the decrees, which must be corrected.

The cigar store appears not to have been rented to the appellant until April, 1885, which was long after the written lease. Before that time Eitter had rented it to other parties, and it was therefore not embraced in the terms of that lease. The awning in front of it was put up after it had been rented to the appellant. The counter and shelving were also put into it at the same time.

It is true they were removed to this store from the old barber shop, where they had been put up during the yearly tenancy, but this removal seems to have been made with the implied, if not express, assent of Mr. Eitter. This awning in front of the cigar store, and the counter and shelving in it, must therefore be exempted from the operations of the injunction, and the former opinion is to this extent modified, and the decrees will be corrected accordingly. (Filed 22nd June, 1888.) Miller, J., delivered the opinion of the Court. The facts material to the decision of the only important question in this case may be summarized thus: The owner of the City Hotel and grounds in Frederick had rented ⁴⁸¹ them for about twelve years prior to 1880 to a tenant at a yearly rent.

This was simply a tenancy from year to year with no written terms or conditions. During his holding under this tenancy the tenant erected and placed in and on the premises certain' buildings, structures and fixtures, all of which are termed and claimed by the appellant as “trade fixtures,” and are the subject of the present controversy. In March, 1880, the landlord served notice in due form upon the tenant to quit at the end of the current year. He did not, however, quit in accordance with this notice, but obtained and accepted from his landlord a written lease of the premises for a term of five years from the 1st of October, 1880.

This lease makes no reference whatever to the former tenancy. It describes the property leased as “the premises known as the City Hotel, situated on the North side of West Patrick Street, fronting sixty-one feet, more or less, in Frederick town, Frederick County, State of Maryland, and running northwardly with equal width to the north wall of the stables, fronting on Public Street, and belonging to said hotel, together with all the rights, appurtenances and privileges thereunto belonging or in anywise appertaining.” It then fixes the rent which is made payable semi-annually on the 1st of April and October, in each and every year. The lessee then agrees to pay the water rent chargeable upon the premises, not to sell, assign or dispose of his interest in the lease without the assent of the lessor, and to keep “the house and buildings attached and appertaining thereto, furnished and supplied, and open at all proper times as a hotel as heretofore.” The tenant died in 1882, and by his will bequeathed his interest in this lease to his widow, the appellant. When the lease was about to expire the appellant, who was proceeding to remove fixtures, was restrained from so doing by the bill in this case, which was filed by the landlord, and the decree appealed from makes the injunction per ⁴⁸² petual as to the fixtures in controversy, which had been placed upon the premises by the tenant during his holding under his tenancy from year to year and before this lease was executed and accepted by him.

The question whether under these circumstances the appellant had the right to remove these fixtures is one of some importance and a new one in this State. Our decisions have gone very far in including buildings and structures within the terms “trade-fixtures,” and in recognizing the right of the tenant to remove them, (Northern Central Railway Co. vs. Canton Co., 30 Md., 352 ); but the precise question now before ns has never hitherto arisen for adjudication in our Courts. It has. however, frequently been adjudicated by Courts of high authority in other jurisdictions. Before considering the authorities bearing directly upon the point, it maybe well to state some general propositions about which there seems to he no contrariety of judicial opinion.

We take it then to be clear that the descriptive .terms in this lease are sufficient to convey to the lessee the fixtures in dispute if they had been previously placed upon the premises by the landlord, or had been left there by a previous outgoing tenant. There is, it is true, no express covenant on the part of the lessee to keep the premises in repair, and restore them in good condition, yet we hold it to be well settled that independently of any express agreement on the part of the tenant to that effect, and in the absence of the landlord's undertaking to repair, the law imposes upon every tenant, whether for life or for years, the obligation to treat the premises in such a manner that no substantial injury shall he done to them; so that they revert to the lessor at the end of the term unimpaired by any wilful or negligent conduct on his part. 1 Taylor’s Land. & Ten., sec. 343; United States vs. Bostwick, 94 U. S., 65 . If such then would have been the effect of this lease with reference to these fixtures in the case supposed, and ⁴⁸³ if it had been made to any one else than the tenant in possession, is there any thing in the circumstances of this case to give it a different operation ? As between landlord and tenant the property of the latter in “ fixtures” of any description which he has annexed to the demised premises during his term, consists simply in the right or privilege of removing them, and if this is not exercised in due time they become the property of the landlord.

In using the term “ fixture” we of course use it in its legal ■sense, as something so attached to the realty as to become for the time being a part of the freehold, and as contra-distinguished from a mere chattel. When must this right or privilege he availed of? The general rule is that it must he exercised during the term or (as aptly stated by Parke, B., in Mackintosh vs. Trotter, 3 Mees. & Wels., 185,) “ during what may for this purpose he considered as an ■excrescence on the term.” In the last edition of his work on landlord and tenant Mr. Taylor states the law thus: “The decisions also agree, that whatever fixtures the tenant has a right to remove, must he removed before his term expires, or at least before he quits possession; for if the tenant leaves the premises without removing them, and the landlord takes possession, they become the property of the landlord. The tenant’s right to remove is rather considered a privilege allowed him than an absolute right to the things themselves.

If he does not exercise the privilege before his interest expires, he cannot do it after-wards ; because the right to possess the land and the fixtures as part of the realty vests immediately in the landlord; and although the landlord has no right to complain if the land he restored to him in the same plight it was before he made the lease, yet if the land is suffered to return to him with additions and improvements, even by forfeiture or notice to quit, he has a right to consider them as part of his property. Nor is this any injustice to the tenant; since it is his own fault if he suffers the land to ⁴⁸⁴ return to the landlord with the fixture's annexed. This rule had its foundation in the presumption of abandonment, arising from the conduct of the tenant in quitting' the premises and leaving his fixtures behind him; and hence the presumption could not arise, so long as the tenant retained actual possession, even so far as to become a trespasser-But the doctrine has been restricted by later cases to the right of removal only during the original term, and such further time as the lessee shall hold the premises under a, right to consider himself a tenant.” 2 Taylor’s Land. & Ten., (8th Ed.,) sec. 551. The same rule is laid down, and the same general view of the authorities taken by the text writers on fixtures.

Tyler on Fixtures, chaps. 30 and 31; Ewell on Fixtures, 131, et seq.; Amos and Ferard on-Fixtures, 94 ; Gibbons on Fixtures, 39 ; Grady on Fixtures, 181. Cases sometimes occur in which it is difficult to fix the precise time when the right of removal ceases, as where-the term is of uncertain duration or where a tenant has been allowed to hold over and become a tenant at will or sufferance, but no such difficulty is involved in the present case and we need not, therefore, notice the authorities-bearing upon that subject. Here the tenancy by the year was put an end to at a definite period by the notice to quit, and the tenant was left in no uncertainty as to when his term would expire. Among the English authorities laying down the general rule as above stated, is Poole’s Case, (1 Salk., 368,) in which Lord Holt said that during the term the soapboiler (the tenant) might well remove the vats as trade fixtures;, but after the term they became a gift in law to him in reversion, and are not removable.

Another is the case off Lee vs. Risdon, 7 Taunt., 191, in which Gibbs, C. J., after stating that the right as between landlord and'tenant does not depend altogether upon the principle that the articles must continue in the state of chattels, says, “ many of these ⁴⁸⁵ articles, though originally^ goods and chattels, yet when affixed by a tenant to the freehold, cease to be goods and chattels by becoming part of the freehold ; and though it is in his power to reduce them to the state of goods and •chattels again by severing them during his term, yet until they are severed, they are a part of the freehold, as wainscots screwed to the wall, trees in a nursery ground, which when severed are chattels, but standing, are part of the freehold, certain grates, and the like. And unless the lessee uses during the term his continuing privilege to «ever them, he cannot afterwards do it; and it never, I believe, was heard of, that trover could be afterwards brought.” He then refers to the well settled doctrine that a stranger who without right severs and carries away fixtures commits a trespass, and is not guilty of a felony at common law. The more modern English authorities have also followed the law as thus laid down, and we refer, as bearing directly upon the question we are now considering, to Minshall vs. Lloyd, 2 Mees. & Wels., 450 ; Mackintosh vs. Trotter, 3 Mees. & Wels., 184 ; Weeton vs. Woodcock, 7 Mees. & Wels., 14; Davis vs. Jones, 2 Barn. & Ald., 165 ; Lyde vs. Russell, 1 Barn. & Adol., 394; Colegrave vs. Dias Santos, 2 Barn. & Cress., 76 ; Roffey vs. Henderson, 17 Q. B. Rep., 574; Hallen vs. Runder, 1 Cromp., Mees. & Roscoe, 266 ; Wilde vs. Waters, 16 C. B. Rep., 637 ; Pitt vs. Shew, 4 Barn. & Ald., 206 ; Pugh vs. Arton, Law Rep., 8 Eq., 626 ; Leader vs. Homewood, 6 C. B. N. S., 546. Other English decisions bearing upon the same subject are cited and commented upon by the elementary writers above referred to, and also in 2 Smith’s Lead.

Cases, 202. In fact the limitation as to the time within which the tenant’s right to remove fixtures under any circumstances endures, as pointed out in the earlier cases, was recognized by Lord Ellenborouub: in the leading case of Elwes vs. Maw, 3 East, 38, in which the previous judgment of Lord Kenyon in Penton vs. Robart, 2 East, 88, ⁴⁸⁶ is reviewed, and whatever doubts this latter case may have thrown upon the subject are removed by the later decisions, and especially by Baron Alderson in Weeton vs. Woodcock, who says, “ the rule to he collected from, the several cases decided on this subject seems to be this: that the tenant’s right to remove fixtures continues during his. original term and during such further period of possession by him as he holds the premises under a right to still consider himself as tenant.” In this country the decisions are numerous, and almost if not entirely uniform in support of the same general rule. Among them we refer to Davis vs. Buffum, 51 Maine, 160;. Garfield vs. Hapgood, 17 Pick., 192 ; Allen vs. Kennedy, 40 Ind., 142 ; Davis vs. Moss, 38 Penn.

State Rep., 346; Beers vs. St. John, 16 Conn., 322 ; Bliss vs. Whitney, 9 Allen, 114 ; State vs. Elliott, 11 N. H., 540; Reynolds vs. Shuler, 5 Cow., 223 ; Shepard vs. Spaulding, 4 Metc., 416 , and Preston vs. Briggs, 16 Verm., 124 . In the last cited case Redeield, J., in a well considered opinion, gives this, terse and, as we think, accurate statement of the law: “It seems equally well settled that all fixtures for the time -being are part of the freehold, and that if any right to remove them exists in the person erectipg them, this must be exercised during the term of the